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Sanivarapu Venkata Reddi and ors. Vs. Nimmakayala Alias Nagella Lakshmi Reddi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1949)1MLJ68
AppellantSanivarapu Venkata Reddi and ors.
RespondentNimmakayala Alias Nagella Lakshmi Reddi
Cases Referred and Abdul Sobhan v. Samasuddin Ahmed
Excerpt:
.....defect or that there were other sufficient grounds for allowing the plaintiff to institute a fresh suit, as he was bound to do under order xxiii, rule i of the civil procedure code, and the rulings in jogamma v. the lower appellate court has undoubtedly failed to do so. the only course, therefore, to follow in this case, consonant with justice, equity and good conscience, will be to set aside the order of the lower court granting permission to the plaintiff to withdraw from the suit with liberty to file a fresh suit, and in consequence the decree in the appeal, and to direct the lower court to restore the petition and the appeal to their original numbers and to proceed to dispose of the application for withdrawal afresh, after hearing both sides and giving sufficient reasons for..........1946, by m.p. no. 360 of 1946, for permission to withdraw from the suit with liberty to file a fresh suit on the same cause of action on such terms as the court deemed fit. the reason given by him was that the suit was defective, as there was no correct plan showing the various plots essential to be considered in deciding the suit, and as his petition for local inspection, after the evidence had been closed, in the trial court, had been dismissed, and he could not also take out a commission, and as a correct plan was essential for a proper appreciation of the evidence in the case. the counsel for the present petitioners endorsed on that petition ' received notice. i oppose the application.' but when the petition itself came up for hearing before the learned subordinate judge, he does.....
Judgment:

Panchapakesa Ayyar, J.

1. The facts, are briefly these: The respondent in this petition filed O.S. No. 122 of 1944 on the file of the District Munsiff's Court, Nandyal, praying for a declaration that the rastha marked XY in the plaint plan was a public rastha and for an injunction restraining the petitioners, the defendants in the suit, from obstructing him and his men in going through the public rastha to the fields, Survey Nos. 194, 195 and 192/3, and taking manure carts through the public rastha to the said fields, and, in the alternative, for establishment of his right of easement of necessity to go through the rastha to the abovesaid fields through the rastha and for an injunction against the defendants. He filed a plan with the plaint. The defendants too filed a plan, Ex. D. 1. The District Munsiff, Nandyal, by his judgment dated 22nd November, 1944, dismissed the suit with costs. The plaintiff seems to have applied for a local inspection and the learned District Munsiff seems to have refused it, probably because, as he suggested, the place was in an interior village some 20 miles from the Court-house, and as a local inspection was not considered to be essential even otherwise.

2. The plaintiff took the matter in appeal to the Subordinate Judge, Kurnool. When the appeal was pending, and after arguments had been addressed on both sides, the plaintiff-appellant applied to the learned Subordinate Judge, on 4th December, 1946, by M.P. No. 360 of 1946, for permission to withdraw from the suit with liberty to file a fresh suit on the same cause of action on such terms as the Court deemed fit. The reason given by him was that the suit was defective, as there was no correct plan showing the various plots essential to be considered in deciding the suit, and as his petition for local inspection, after the evidence had been closed, in the trial Court, had been dismissed, and he could not also take out a commission, and as a correct plan was essential for a proper appreciation of the evidence in the case. The counsel for the present petitioners endorsed on that petition ' Received notice. I oppose the application.' But when the petition itself came up for hearing before the learned Subordinate Judge, he does not seem to have addressed any arguments opposing it. The learned Subordinate Judge perhaps, thought that both sides had put in the petition for withdrawal, as the decree in A.S. No. 118 of 1946 has a clause ' Both the parties file M.P. No. 340 of 1946 pray-ing for permission to withdraw the suit.' Probably he saw the signature of the counsel for the defendants in that M.P., without seeing the endorsement, ' I oppose the applications.' That alone can explain why he passed such a summary and cryptical order, according permission to withdraw the suit. That order is quoted below:

The plaintiff's suit is defective for want of proper sketch showing the disputed rastha and the situation of the various lands which appear in the evidence. The sketch filed by the defendants also contains no letters demarcating the several items mentioned therein. Under such circum-stances, I grant leave to the plaintiff-appellant to withdraw the suit with liberty to file a fresh suit on the same cause of action. But he should give a sum of Rs. 100 to the defendants-respondents towards their costs of the suit and of this appeal within one month from this date as a condition precedent for filing a fresh suit.

The learned Subordinate Judge thereafter dismissed the appeal, and granted per-mission to the plaintiff to file a fresh suit on condition of his paying Rs. 100 costs within a month. Hence this revision petition by the defendants.

3. The learned Counsel for the petitioners urged that the learned Subordinate Judge went wrong in law in allowing the plaintiff to withdraw the suit with liberty to file a fresh suit on condition of paying Rs. 100 within a month without being satisfied, and without giving reasons for his being satisfied, that the suit must fail by reason of some formal defect or that there were other sufficient grounds for allowing the plaintiff to institute a fresh suit, as he was bound to do under Order XXIII, rule I of the Civil Procedure Code, and the rulings in Jogamma v. Bhanumurthi 1927 M.W.N. 851 and Abdul Sobhan v. Samasuddin Ahmed : AIR1931Cal336 . There is considerable force in this contention. Any Court allowing a party to withdraw from a suit with liberty to file a fresh suit at such a late stage as this, after arguments also have been addressed in appeal, is bound to give satisfactory reasons falling within Order XXIII, rule I, Civil Procedure Code. The lower appellate Court has undoubtedly failed to do so. It is not clear what it meant by saying that the suit was defective for want of a proper sketch showing the disputed rastha and the situation of the various lands which appeared in the evidence. There were two sketches before it, namely the plan filed by the plaintiff along with his plaint and the plan filed by the defendants, Ex. D.1. If it wanted a more detailed and accurate sketch than either of these it was within its powers to direct the parties to get a commissioner appointed to draw a correct sketch with full details, or to suggest a local inspection by itself to clear up all the doubts it had. It did not even say whether it was allowing the withdrawal because the want of a correct sketch amounted to a formal defect in its opinion, or only amounted to a sufficient ground under Order XXIII, Rules 1 and (2)(b).

4. I am convinced that it did not give its detailed reasons because it was perhaps under the wrong impression that both sides had put in a petition for withdrawal and did not, therefore, go into the matter deeply or give sufficient reasons for its order. It is clear now, and is not disputed by the other side, that the defendants had not joined in the petition for withdrawal, and had, as a matter of fact, expressed that very day their determination to oppose that application. The endorsement on the petition will show at least their initial intention to oppose and there is no proof that they withdrew from that intention later in the day. The learned Counsel for the petitioners has assured me that it is not the insufficiency of the solatium (he says that at least Rs. 250 must have been spent by his clients) that has made the defendants file this petition but the fact that the withdrawal had been allowed for insufficient reasons, and that no sufficient reasons existed for allowing the withdrawal at that stage.

5. It seems to me that the lower Court acted without jurisdiction, and with material irregularity, in allowing the withdrawal of the suit at that stage without giving sufficient reasons falling within Order XXIII, Rules 1 and 2(a) or (b) of the Civil Procedure Code. The only course, therefore, to follow in this case, consonant with justice, equity and good conscience, will be to set aside the order of the lower Court granting permission to the plaintiff to withdraw from the suit with liberty to file a fresh suit, and in consequence the decree in the appeal, and to direct the lower Court to restore the petition and the appeal to their original numbers and to proceed to dispose of the application for withdrawal afresh, after hearing both sides and giving sufficient reasons for the order either way in the restored M.P. No. 360 of 1946, and thereafter to proceed to dispose of the appeal afresh, and I direct accordingly. In the circumstances, I direct that the costs in the Civil revision petition and the second appeal (No. 933 of 1947), to abide and be provided for by the lower Court, when disposing of the application for withdrawal of the appeal afresh. Rs. 100 paid by the plaintiff to the defendants under the order of the lower Court in the withdrawal application now set aside, will be refunded to the plaintiff on a proper application to the lower Court.

6. S.A. No. 933 of 1947. No separate order is necessary in view of the orders in C.R.P. No. 800 of 1947 which covers this matter also and has directed the fresh hearing of A.S. No. 118 of 1946. Court-fee paid on the memo of second appeal will be refunded.

7. Leave refused.


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